MPs vote on prisoners’ votes: how to square the circle

by Carl Gardner on February 10, 2011

MPs in the Commons will today debate the motion put down by David Davis, Jack Straw and others (main business, over half way down the order paper), which is in these terms:

That this House notes the ruling of the European Court of Human Rights in Hirst v the United Kingdom in which it held that there had been no substantive debate by members of the legislature on the continued justification for maintaining a general restriction on the right of prisoners to vote; acknowledges the treaty obligations of the UK; is of the opinion that legislative decisions of this nature should be a matter for democratically-elected lawmakers; and supports the current situation in which no prisoner is able to vote except those imprisoned for contempt, default or on remand.

On the order paper you can also see an amendment supported by Sir Peter Bottomley, who in favour of prisoners’ votes, and one by Anne Main and others including John Redwood, Peter Lilley and Richard Shepherd, which

instructs the Government not to pay any compensation to prisoners and former prisoners in consequence of the maintenance of the current situation.

I have some sympathy with David Davis and the others wanting to dig their heels in about this: I am a supporter of the European Convention and Court of Human Rights, but as I’ve written before, the Court is sometimes far too ready to cross the line into detailed national policy, and it has done so in the Hirst case which is the root of the UK’s problem, and in its contradictory rulings since then.

The position of Jack Straw is more questionable, though: until recently he was Minister of Justice in a government publicly committed to implementing Hirst – though obviously at the same time putting implementation off to be dealt with after the 2010 election, when it would quite likely be someone else’s headache (as has indeed come to pass). I think it’s quite rich of Jack Straw now to “come out” as resisting implementation. Frank public opposition from him while in government might have had more impact.

Now, having had an international law obligation to implement Hirst for nearly 6 years, the UK has been given a clear timetable to do so in Greens & MT – by the end of this summer, assuming the government does not ask a Grand Chamber of the Court to reconsider the judgment. The Grand Chamber has already considered this of course – back in Hirst, in 2005. To be fair, this is the first time backbenchers have had the chance to express their view. But it is desperately late for MPs to be trying to resist Hirst now. And if this motion is passed – let’s see – the government will have a very big problem.

On the one hand, assuming the motion is passed, it will be clearly difficult to get any legislation through Parliament to give effect to Hirst. It’s true that would give the UK one more argument to make to its counterparts in the Council Committee of Ministers* of the Council of Europe, who are responsible for enforcing judgments, when making diplomatic attempts to play for more time or more sympathy. It might cause the government to try the desperate last legal throw of asking to refer Greens v MT to the Grand Chamber – there is time, just – even though there is little in that judgment itself to disagree with. There is a remote chance such a hearing might happen, and might cause a shift of approach in the court (where a minority of judges has in the past – in Hirst itself, notably – agreed with me and opponents of prisoners’ voting).

But equally, the government’s obligations in international law are clear, we have given other countries the clear impression for years that we intended to implement, and the legal clock is now ticking. While claims that the UK is at risk of compensation claims amounting to £100 million may be exaggerated (I’d say that’s the very worst conceivable case scenario; I think £50 million is what I’d politically “insure for” and that something like £5-£30 million is much more likely), public money is being put at risk. More seriously, the UK would be more at risk of being (I think) the first state brought back to the Court under new “infraction” procedures to answer for its non-implementation of a judgment. To beat Russia and Turkey to that dubious prize would not be ideal.

So, how to square the circle? How can the government fulfil its international law obligations, avoid the risk of being humiliatingly hauled up before the court in Strasbourg and a possible payout of up to £50 million – yet also satisfy MPs? Is it possible? I think it is.

If I were still in government advising ministers, I think I’d be reminding them that one way of implementing Hirst would be simply to allow any convicted prisoner to apply to the judge when sentenced to imprisonment to lift, in his or her case, the ban on voting in general elections to Westminster and the devolved national legislatures. There could be tough-sounding sentencing guidance telling judges to lift the ban only where absolutely necessary to comply with human rights. This would not be as clear or principled an approach as the government’s recent proposal for a four-year cut-off. But in terms of cynical realpolitik, it could work.

In reality, most convicts would apply. And when making the decision, judges would have to take account of Strasbourg case law – and so would probably end up lifting the ban in the vast majority of cases, as the cases seem to suggest may be required. Many, probably most, prisoners would end up getting the vote. Yet this could conceivably be sold now to MPs as a tough approach, refusing to give the vote by law to any prisoner at all, giving “stern” guidance to judges aiming at delivering minimal compliance case-by-case, and crucially, handing the problem to someone else. In due course MPs could enjoy the sport of blaming “activist” judges for their outrageous laxness in lifting the ban more often than not.

Cynical? Two-faced? Dishonest? You might think that, as Francis Urquhart would say. I won’t be surprised if the government proposes something like it.

[*Thanks to Faceless Bureaucrat for pointing out my error in comments]

{ 15 comments… read them below or add one }

1 Richard Moorhead February 10, 2011 at 15:16

Great post as ever Carl.

Apropos your last suggestion, whenever there’s a serious argument about whether the ban should be lifted (on sentence, where the cost may be absorbed within fixed fees) or more particularly on appeal, there is a risk this would add not insignificantly to legal aid costs.

2 Andy February 10, 2011 at 17:17

I’m always a bit wary of playing PR realpolitik with popular respect for the law. It rather begs the question of why have the laws we have if they aren’t able to command some semblance of respect. Trying to deflect public irritation the judiciary and the courts seems unfair as the courts are pretty much unable to meaningfully defend themselves without laying the courts system open to increasing charges of politicisation.

Which is not to say that the government won’t do it. I guess you would have been advising someone at the time of Youseff v Home Office when Tony Blair encouraged simply passing the buck onto the courts, so you may have first hand experience of such an approach. It does rather trouble me though that the government would act so as to devalue the moral authority of the law. Particularly when the alternative is to simply get out there and govern—for while there are questions to be asked about Hirst v UK, the court does have a point. Yet what how much of the population—nay, how many MPs actually have the first idea of what point the court was making?

The grandiloquent statements about murderers, rapists and paedophiles all skipping along to vote might suggest the answer to that is: ‘few’.

3 Anonymous February 11, 2011 at 06:27

Why are you opposed to allowing Prisoners the Right to vote?

All people should have this right obviously. there is no contary argument.

How silly all our mps are cravenly cow towing to daily mail bigots on so many issues. Very New Labour,

Why join this courous of hypocrites?

4 Rick February 11, 2011 at 12:36

It may sound like a simple argument compared to those put forward by people with more detailed legal knowledge, and no doubt I will come across as a ‘Daily Mail reader’ but the issue is simple:

Prisoners lose liberties when incarcerated, including the right to determine their government. the less serious the crime, the less time they lose their liberties for. Surely that’s the point? I dislike this pandering to Strasbourg.

5 ObiterJ February 11, 2011 at 14:34

1. I really do not see why we should persist with this outdated concept of denying prisoners a vote. Allowing the vote is the straightforward solution.

2. Yesterday’s debate in the Commons seemed more about putting one over on the European Judges than actually having any rational discussion about why we should retain this rule.

3. I would also have concern re leaving it to trial judges to decide. You argue that they would decide on human rights grounds and that most applications would be granted. Of course, the judges could be given “stern guidance” but if you are going to do that then it should be Parliament which makes the guidance. Thus, we come full circle since the MPs would have to set out the criteria for the judges to use when making these decisions. They may as well do that by amending the law in the first place.

4. If the vote is to continue to be denied to ALL prisoners (whatever length of sentence) then you would either have to allow Magistrates’ Courts to rule on prisoner applications to vote or, alternatively, have a second hearing before a Judge to make the decision. Thus expense is added and further appeals likely.

5. I entirely agree with your view of Straw.

6. Also, I would not wish the UK to be the first Council of Europe State to face infraction proceedings. As you say, that dubious honour ought to be for someone else. Unfortunately, yesterdays vote (by just 39% of MPs) makes it more likely that we might end in such proceedings.

6 Anonymous February 11, 2011 at 16:04

I can’t believe anybody is defending prisoners. Cameron said it makes him ‘physically ill’ that these issues are even being considered

7 Carl Gardner February 11, 2011 at 16:20

@Anonymous of comment 3:

I’m not opposing prisoners’ votes. I’m agnostic about it as an issue in itself (Sir Peter Bottomley’s speech in favour yesterday was one of the most interesting of the debate I thought), and I don’t think I’ve been commenting on the merits of the issue. I am critical of the ECtHR’s ruling in Hirst v UK, which I think was legally wrong (and by the way some of the judges in the cases agreed with me, and dissented from the majority); and I think it’s that ruling that is the cause of this conflict with Parliament. I support the ECHR, the ECtHR and the Human Rights Act.

8 Carl Gardner February 11, 2011 at 16:41

@Andy:

If you apply the approach the ECtHR seems to have taken in Frodl, then it wouldn’t be compatible with the Convention for a judge to deny the vote to murderers, rapists and paedophiles in principle. In that case and Scoppola the Court seems to be calling for the vote for almost all prisoners, for decisions to be taken case by case, and for only a few very long-serving prisoners, plus election fraudsters, to be denied the vote.

9 Andy February 11, 2011 at 19:36

@ Carl

All very true. I’ll confess that I’m not entirely clear on the precise enforcement mechanisms of the CoE and the ECtHR. I was under the impression that, if there is Hirst compliant legislation on the books then the issue would have to wind its way back to the ECtHR for a declaration that the new approach wasn’t compliant. Which, given the general state of the domestic courts and the ECtHR, will probably be about a decade away…

That said, I’m still a little perplexed over Frodl. Hirst was a Grand Chamber judgment. Frodl wasn’t, yet somewhat conflicts with Hirst (particularly on the margin of appreciation) and was decided after it (with the Grand Chamber refusing to hear an appeal). And, of course, Greens & MT adds to the confusion, being decided after Frodl (and suggesting Hirst is still the benchmark), but prior to Scoppola. Not very edifying for the ECtHR, and raising the question of what the law actually is. Any ideas…!

10 Jailhouselawyer February 12, 2011 at 12:45

It is quite simple. On the one scale we have a binding Convention and Court decision, and on the other a non binding motion and debate and vote by some MPs in the Commons. The former clearly carries the most weight.

The motion misleads Parliament in that it was not held in my case “that there had been no substantive debate by members of the legislature on the continued justification for maintaining a general restriction on the right of prisoners to vote”. This formed part of my argument which the Court accepted. Therefore, the Court did not say now go back and debate this issue. The time for debate has passed, because the question before the Court was “Whether convicted prisoners are entitled to vote?”, and the Court answered in the affirmative.

This is pure hypocrisy “acknowledges the treaty obligations of the UK”, because the motion is about reneging from this. Equally is your “I am a supporter of the European Convention and Court of Human Rights”. You are guilty of being in Woolworths pick and mix counter.

The solution to the “Hirst problem” as Lord Mackay of Clashfern calls it, is for Kenneth Clarke to make a remedial order under s.10 of the HRA to amend s.3 of ROPA 1983 and lay it before Parliament. Sorted. Simples.

There is a obligation upon the UK to fully comply with my case. Already Europe has expressed condemnation of the Commons motion and vote, and reminded the UK of its obligation.

The UK needs to get real and digest that this is not an issue upon which there is any room for negotiation with Europe. The Court has ruled and its ruling is final and binding. All that remains is for the UK to fully comply, or face sanctions. On 8 March the UK has to go before the Committee of Ministers and explain why it has not fully complied with my case. There is no justification. I am urging that the CoM invokes Rule 11 ‘infringement proceedings’.

11 Annabel Kaye February 12, 2011 at 15:17

Given the low turn out of voters generally, it seems likely that less than half of all prisoners would bother to vote if given the opportunity.

Why not just give then the vote and arrange postal votes – just as any other citizen away from their home can vote through the post.

No doubt many will not bother. Let’s not waste tax payers money on being fined by Europe for non compliance – we don’t have the money!

The Royal Mail will doubtless be on strike at the relevant time anyway!.

If MPs can vote away our Sovereignty without the benefit of any mandate from the British people, why not let murders vote? Surely a felon’s opinion is just as likely to be ignored as anyone else’s.

12 Keith February 15, 2011 at 05:46

Cameron says he believes in Human Rights. Prisoners are Humans and members of a democratic society. So why does he oppose votes for them? Believing people have rights does not require that you like the people with the rights.

This is an example of emotions getting in the way 0f reason.

13 faceless bureaucrat February 16, 2011 at 10:21

Hi Carl,

Interesting post. As I’m sure you hate inaccuracies, please note that its the Committee of Ministers in the CoE that the UK needs to present its proposals to, not the Council.

http://www.coe.int/t/dghl/monitoring/execution/default_en.asp

see also

http://www.coe.int/t/DGHL/MONITORING/EXECUTION/Reports/Default_EN.asp?dv=1&StateCode=UK.

14 Carl Gardner February 16, 2011 at 12:31

Quite right, Faceless! You’re right, I’m not mad keen on inaccuracies, and am raging with self-fury at being caught out in one (though it is an occupational hazard). A slip of the keyboard. Thanks for pointing it out.

15 faceless bureaucrat February 16, 2011 at 14:04

Carl ! Don’t be too furious with yourself. Apparently, the Attorney General is not aware of the Committee’s existence so at least you’re ahead of him.

“Claire Perry (Devizes) (Con): Can the Attorney-General help the House understand by what mechanism the European Court’s judgment and-rather more unpalatably -the award of compensation to a convicted axe murderer could be enforced in this country?
>
> The Attorney-General: There is no mechanism to enforce-[Hon. Members: “Ah!] My hon. Friend must listen carefully. The truth is that enforcing something against a Government who do not wish to have it enforced against them is very difficult, because the Government retain Executive power. If a judge in our High Court said that the Government should do something and the Government said, “We won’t do it,” it would be very difficult to do. Equally, however, it is worth bearing it in mind that the Government would be in rather serious breach of the principles of the rule of law and would, in fact, be behaving tyrannically.”

Leave a Comment

{ 2 trackbacks }

Previous post:

Next post: